Opinion
2013-12-27
In the Matter of GADA B. Erie County Department of Social Services, Petitioner–Respondent; Carlos B., Respondent, and Vianez V., Respondent–Appellant.
William D. Broderick, Jr., Elma, for Respondent–Appellant. Joseph T. Jarzembek, Buffalo, for Petitioner–Respondent.
William D. Broderick, Jr., Elma, for Respondent–Appellant. Joseph T. Jarzembek, Buffalo, for Petitioner–Respondent.
David C. Schopp, Attorney for the Child, The Legal Aid Bureau of Buffalo, Inc., Buffalo (Charles D. Halvorsen of Counsel).
PRESENT: SMITH, J.P., FAHEY, LINDLEY, VALENTINO, and WHALEN, JJ.
MEMORANDUM:
In this proceeding pursuant to article 10 of the Family Court Act, respondent mother appeals from an order in which Family Court found that she neglected the subject child. We note at the outset that it appears that the mother surrendered her parental rights to the subject child during a subsequent court appearance. Assuming, arguendo, that this appeal is not moot because “the finding of neglect constitutes a permanent and significant stigma that might indirectly affect the mother's status in future proceedings” ( Matter of Jamiar W., 84 A.D.3d 1386, 1386–1387, 924 N.Y.S.2d 553; cf. Matter of Simeon F., 58 A.D.3d 1081, 1081–1082, 872 N.Y.S.2d 731, lv. denied12 N.Y.3d 709, 881 N.Y.S.2d 18, 908 N.E.2d 926), we affirm. In this neglect proceeding, petitioner's burden was to “demonstrate by a preponderance of the evidence ‘first, that [the] child's physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired and second, that the actual or threatened harm to the child is a consequence of the failure of the parent ... to exercise a minimum degree of care in providing the child with proper supervision or guardianship’ ” (Matter of Ilona H. [Elton H.], 93 A.D.3d 1165, 1166, 940 N.Y.S.2d 406, quoting Nicholson v. Scoppetta, 3 N.Y.3d 357, 368, 787 N.Y.S.2d 196, 820 N.E.2d 840; seeFamily Ct. Act §§ 1012[f][i][B]; 1046 [b][i] ). The court's “findings of fact are accorded deference and will not be disturbed unless they lack a sound and substantial basis in the record” (Matter of Kaleb U. [Heather V.–Ryan U.], 77 A.D.3d 1097, 1098, 908 N.Y.S.2d 773; see Matter of Arianna M. [Brian M.], 105 A.D.3d 1401, 1401, 963 N.Y.S.2d 895, lv. denied21 N.Y.3d 862, 2013 WL 4516332). Here, based upon the evidence presented by petitioner, combined with the adverse inference that the court properly drew based upon the mother's failure to testify ( see Matter of Christine II., 13 A.D.3d 922, 923, 787 N.Y.S.2d 182), we conclude that there is a sound and substantial basis to support the court's finding that “the child was in imminent danger of impairment as a result of [the mother's] failure to exercise a minimum degree of care” (Matter of Paul U., 12 A.D.3d 969, 971, 785 N.Y.S.2d 767; see Matter of Claudina E.P. [Stephanie M.], 91 A.D.3d 1324, 1324, 937 N.Y.S.2d 655; see generally Nicholson, 3 N.Y.3d at 368–370, 787 N.Y.S.2d 196, 820 N.E.2d 840).
Finally, “[e]ven assuming, arguendo, that we agree with the [mother] that the court did not adequately state the grounds for its determination, we conclude that the error is harmless because the determination is amply support[ed] by the record” (Matter of Donell S. [Donell S.], 72 A.D.3d 1611, 1612, 900 N.Y.S.2d 217, lv. denied15 N.Y.3d 705, 2010 WL 3431042 [internal quotation marks omitted] ).
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.